SUMMARY FOR THE MONTH OF JANUARY
16th January to 31st January
16th of Jan
mpAct4
Madhya Pradesh Vat (Second Amendment) Act, 2015 - Amendment of Section 2 & 17 and Insertion of Section 9-AA
hpNoti5
Himachal Pradesh: Draft amendment of HPVAT Schedule A & B
ceNoti02
Central Excise: Increase the Basic Excise Duty rates on Petrol and Diesel (both unbranded and branded)
cuNoti13
Customes: Rescinding Notification No. 09/95-Customs dated 06.03.1995 - Revision in Tariff of certain items
cuCorri12NT
Customs: Corrigendum to Notification No. 12/2016-Customs (N.T.), dated the 12th January, 2016
oriNoti1461
Odisha: Composition Scheme for Works Contract under OVAT Act, 2004 (for Real Estate Business and other Works Contract)
oriNoti1457
Odisha: Rate of Composition tax for Works Contract under OVAT Act, 2004 (for Real Estate Business and other Works Contract)
gujNoti47
Gujarat: Examption on Technical Grade Urea
18th Jan
2016-VIL-30-ORI
M/s GANAPATRAI BALABUX Vs THE ASSESSING AUTHORITY
Orissa Entry Tax Act, 1999 – section 7(2) - adjustment of tax payable against copy of money receipt – HELD - The observation of respondent that photocopy of any document is inadmissible in legal proceeding unless it is certified by the appropriate authority is beyond the legal principles before the quasijudicial authority – respondent has not properly evaluated the copies of documents produced by the petitioner for which his reasons for rejecting the appeal and confirming the order of the Assessing Authority is also vulnerable one - the observation of respondent by not accepting the copies of receipts issued to the transporter in compliance with the circular issued by the Department in 1999 is contrary to section 7(4) of the O.E.T. Act, 1999 (unamended) and, as such, the petitioner is entitled to the benefit of such adjustment - Although alternative remedy is available and, at the same time, the writ petition is maintainable, for the interest of justice, it is more prudent to allow the writ petition by quashing the impugned orders so that the rights of the petitioner can be addressed expeditiously - the impugned orders set aside - matter remitted back to reassess the incidence of payment of tax – Appeal allowed by remand
2016-VIL-32-P&H
M/s SKOL BREWERIES LTD Vs THE STATE OF HARYANA
Haryana General Sales Tax Act – Whether beer (IMFL) is an item covered by Entry 24A of Schedule 'B' of the Act – HELD - Since the Tribunal has decided the appeals only on the basis of the decision in M/s Thomas & Katyal Pvt. Ltd. Murthal's case and the case of the petitioner(s) is totally different, the matter requires to be remanded to the Tribunal to decide afresh in accordance with law – Matter remanded
2016-VIL-31-BOM-CE
MERCEDES BENZ INDIA PRIVATE LIMITED Vs THE COMMISSIONER OF CENTRAL EXCISE, PUNE-I
Central Excise - common input services used in relation to manufacture and sale of cars as well as import and sale of cars - Appropriation of credit between manufacturing and trading and import of cars – Rule 6(5) of the Cenvat Credit Rules, 2004 - calculating amount of the eligible cenvat credit – HELD – The Tribunal must firstly refer to the substantive Rule and as operative prior to 1st April 2011 and then arrive at a conclusion in relation to the Explanation introduced with sub-clauses with effect from 1st April 2011. On its introduction and even prior thereto, we do not find any justification then to hold that the Parliament intended to encourage trading of goods rather than manufacturing of the same. - The Parliamentary intent has to be gathered from the language used. If the words are plain, simple and clear, there is no scope for interpretation or applying any principle thereof. Once the Tribunal is bound to decide the controversy in the backdrop of the object and purpose sought to be achieved but has not arrived at any conclusion bearing in mind the same - as far as working of the denominator is concerned (and even the numerator, technically speaking) and to apportion the input credit, it would be appropriate to send the matter back to the Tribunal - the Tribunal should not arrive at a conclusion that the amendment has been adopted to encourage trading in goods rather than manufacturing of the same – Matter remanded
2016-VIL-46-CESTAT-CHE-ST
THE INDIAN HUME PIPE CO. LTD Vs CCE, TRICHY
Service Tax – Works Contract – construction of pipeline and other structures - period of dispute 01.10.2007 to 31.03.2009 - whether for the services provided during this period are liable to service tax under the Works Contract Service, which was introduced into the statute from 01.06.2007 – HELD - there was sufficient scope for the appellants to come into a bonafide belief that even during the said period, in absence of clear definition of the Works Contract Service to cover the specific service provided by them, no service tax was payable as the decision of the tribunal in their own case was in favour of them. Though this decision pertained to the period prior to 01.06.2007 - Since the issue appears to be latent to the interpretation of law at the initial stage of introducing due service, there was scope of bonafide belief that the appellants did not have to pay tax. Therefore, the non-obtaining of service tax registration and non payment of tax could be due to the bonafide belief that no tax was payable even under Works Contract Service. Consequently, the appellant’s contention that no returns were filed could also be due to such bonafide belief - failure in obtaining registration and non payment of tax couldn’t be attributed to deliberate suppression of facts and intention to evade tax - invoking of the longer period of time limit is not justifiable in the instant case - impugned order set aside on limitation and appeal is allowed
2016-VIL-47-CESTAT-AHM-ST
M/s D.S. SERVICE Vs CCE & ST, VADODARA
Service Tax - ‘Manpower Recruitment or Supply Agency – Demand – non-payment of tax collected – demand, interest and penalty – HELD – considering that the appellant is a proprietorship concern and the services were rendered to a Private Limited Company in organised sector and the services were duly recorded in the books of accounts, and also considering the financial difficulties of the proprietorship concern imposition of penalties under Section 76 and Section 70 are not warranted - the impugned order-in-original with regard to imposition of penalty under Section 78 is upheld. However, the penalties imposed under Sections 76 and 70 of the Finance Act, 1994 is set aside
delCir34
Delhi: Extension in date for filing of reconciliation return for the year 2014-15
nagaNoti69
Nagaland: Introduction of e-Road permit mandatory for non-registered dealers for other purposes than sale
19th of Jan
2016-VIL-02-TRB
M/s BHARAT EARTH MOVERS LIMITED Vs STATE OF KARNATAKA
Karnataka Value Added Tax Act, 2003 – Section 10(3) – Net Tax - Input tax credit - Interpretation of word ‘substitution’ - Whether the amendment to Section 10(3) of the Act with effect from 01.04.2015 by way of substitution can be construed as having retrospective effect - entitlement for the availment of input tax credit claimed within the period of six months' deviating from the tax period to which the tax invoice relates to such input tax credit – admissibility of claim of input tax claim beyond six months on the fact that the completed sale date shall be reckoned as the date of purchase for the purpose of availing input tax credit - disallowance of input tax credit relating to sale of Metro Coaches to DMRCL – HELD – amendment to Section 10(3) of the Act by virtue of Karnataka Value Added Tax (Amendment) Act, 2015 is clarificatory in nature and thus thereby operates retrospectively - appellant is entitled for the benefit of input tax credit amounting to which is claimed within the period of six months as the said purchases are claimed in the returns within six months from the date of tax invoices as per 'substituted Section 10(3) of the Act which operates retrospectively' - the appellant is not eligible for the input tax credit which is availed beyond six months of date of purchase as it is not in accordance with Section 10(3) & Section 35(4) of the Act - so far as computation of non-deductible input tax as per the provisions of Section 17 has to be held correct and the confirmation of disallowance of input tax credit relating to manufacture and sale of Metro Coaches to DMRCL is also to be held as correct - The prescribed authority has to examine whether there is any blame worthy conduct before invoking the provisions of Section 72(2) of the Act for the purpose of levy of penalty – assessee appeal partly allowed
2016-VIL-33-DEL
HS POWER PROJECTS PVT LTD Vs COMMISSIONER OF TRADE & TAXES, DELHI
The Delhi Sales Tax on Works Contract Act, 1999 - works contract - execution of labour contracts and civil works contract – supply of labour for excavation work – composite contract - composition scheme under Section 6 of the Act – Whether a labour contracts could be subject to levy of sales tax under Sections 4, 5 and 6 of the Act – inclusion of receipts on account of supply of manpower / labour in the gross turnover of the – HELD - the Act does not intend to bring to tax anything other than the value of the goods transferred whether as goods or in some other form in the execution of a works contract - when a dealer avails of the benefit of composition under Section 6(1) of the Act, he is expected to pay tax at the lower rate of tax @ 4% on the total amount of the contract or the total aggregate value of the contracts received or receivable towards the execution of the works contract i.e. where the contract is a composite works contract and the dealer avails of the benefit of composition in terms of Section 6(1), he would be expected to pay tax @ 4% of the entire value of the composite works contract - The stand of the AA that, once the dealer opts for composition, he is required to pay tax on the aggregate value of all the contracts, including pure labour contracts does not appear to be based on a correct understanding of the provisions of the Act. When the provisions are read as a whole, and in the context of the object and purpose of the Act, it is seen that the legislative intention was not to bring pure labour contracts within the purview of the Act, much less within the purview of Section 6 (1) of the Act – impugned assessment order sets aside and matter remanded for a fresh examination of the issue subject to the Assessee producing copies of the works contract as well as copies of the pure labour contracts - The AA will examine whether the labour contracts which the assessee states are pure labour contracts were executed independent of the composite works contract – Assessee appeal allowed
CENTRAL EXCISE SECTION
2016-VIL-53-CESTAT-MUM-CE
BAYER CROPSCIENCES LTD Vs COMMISSIONER OF CENTRAL EXCISE, THANE-I
Central Excise - Cenvat credit of Central Excise duty paid on the furnace oil, which was used for manufacture of steam, some part of the steam utilised in canteen and in laundry - whether appellant is required to debit an amount of Cenvat credit proportional to the utilisation of steam use in canteen and laundry – phrase “used for any other purposes” - HELD - the canteen services and the laundry service is used within the factory and in a way related to manufacturing activity – credit admissible - thee impugned orders are unsustainable and liable to be set aside – assessee appeal allowed
2016-VIL-51-CESTAT-MUM-CE
COMMISSIONER OF CENTRAL EXCISE, MUMBAI Vs RAMKUMAR & SONS PVT. LTD.
Central Excise - manufacturer of Iron and Steel products i.e. Rough Forging, Rolling Mill Parts and Rolls – classification under 7326 or 7214 as claimed by the assessee - benefit of Notification No. 6/2002 – HELD - the dispute of classification as put forth by the show-cause notice was whether the product would merit classification under Chapter Headings 73.26 or 72.14/72.16. The classification which has been arrived at by the first appellate authority in his impugned order is under Chapter Heading No. 7207 - the impugned order cannot travel beyond the show-cause notice and classifying the product under Chapter Heading No. 7207 is incorrect - the impugned order set aside and matter remanded first appellate authority
CUSTOMS SECTION
2016-VIL-49-CESTAT-KOL-CU
M/s TATA CHEMICALS LTD Vs COMMISSIONER OF CUSTOMS (PORT), KOLKATA
Customs - import of Murate of Potash (MOP) in bulk – claim of exemption under Notification No.12/2012-CE for Additional duty (CVD) – denial of the benefit as claimed by the Appellant – End use certificate - HELD - at no point of time either during the adjudication or Appellate proceeding, the use of MOP in the manufacture fertilizers has been disputed by the Revenue. Further, from the certificate produced by the Appellant, it is abundantly clear that the imported MOP had been used in the manufacture of fertilizers - at any point of time if the department is able to unearth facts or bring evidences that would lead to an inference that the imported MOP had not been used in the manufacture of fertilizers, on that ground alone the benefit of exemption Notification could be denied alleging suppression or mis-declaration of facts. However, at this stage since the evidence produced by the appellant, has not been rebutted by the revenue by producing contradictory evidences, hence, it is safe to conclude that they have complied with the condition of Notification No.12/2012-CE dated 17.03.2012; accordingly, eligible to the benefit of the said Notification – Assessee appeal allowed
2016-VIL-48-CESTAT-CHE-CU
ANIL KUMAR TIWARI & PAARTH TRADING COMPANY Vs CCE, TUTICORIN
Customs - Undervaluation of imported goods – enhancement of value by department relying on contemporaneous imports - confiscation and imposition of fine and penalty – HELD - appellant failed to produce any evidence of purchase order and terms and conditions of sale and manufacturer’s invoice before the Commissioner of Customs. In the absence of any evidence, no justification in appellant’s argument that when compared to contemporaneous imports, the impugned goods were declared at US$ 0.70 per mtr., whereas the international price of ‘Polyester Woven Fabrics’ is between US$ 2.36 and US$ 1.05 per mtr - The difference of 33% less when compared international price cannot be considered as normal ‘discount’ offered by the supplier to the appellant. In the absence of manufacturer’s invoice, or any supplier’s price list or manufacturer’s price list of the imported goods, no justification of the appellant it is a discount. The appellant’s contention that they have purchased stock lot also is not supported with any evidence - rejection of declared price and enhancement of value by the adjudicating authority is fully justified and liable to be upheld. Consequently, the confiscation of the seized goods under Section 111 (m) and demand of differential duty on the re-determined value under Section 28 of Customs Act is upheld – Denial of DFIA licence - there was no allegation made in the SCN for the denial of benefit of DFIA Licence or any misuse of DFIA licene for clearance of the goods - appellants are entitled to utilize DFIA licence for clearance of the said goods – Assessee appeal partly allowed
SERVICE TAX SECTION
2016-VIL-52-CESTAT-MUM-ST
BAJAJ AUTO LTD Vs COMMISSIONER OF CENTRAL EXCISE & ST (LTU), MUMBAI
Central Excise – eligibility of CENVAT credit on the service tax paid on the services rendered at windmill station/farm situated away from the factory premises - correlation between the electricity generated and consumed for manufacturing activity – HELD - appellant has fed electricity generated at windmill farm/station situated at Satara, into MSEB grid and is eligible to draw a specific quantum of electricity from the grid based upon some formula as agreed between appellant and MSEB. It is also undisputed that the final product manufactured by appellant is liable to duty and the windmill farm/station is erected by appellant. There is also no dispute that services for maintenance and repairs are under taken by a service provider who discharged the tax liability - The entire findings of the adjudicating authority is on the ground that the provisions of rule 2 (l) of the CENVAT credit rules which defines the input services, does not cover the activity as undertaken by the appellant’s service provider - the proposition in order-in-original is incorrect as Hon’ble High Court of Bombay had considered self same issue in the case of Endurance Technology Pvt. Ltd. – following this judgment the impugned order is set aside and the appeal is allowed
2016-VIL-50-CESTAT-MUM-ST
COMMISSIONER OF CENTRAL EXCISE, AURANGABAD Vs CHANDAN MILK & AGRO PRODUCTS PVT LTD
Service Tax - Benefit in reducing the penalty to the extent of 25% of the tax liability – different view of two High Court - HELD - the judgement on a particular issue which passed by a Jurisdictional High Court, judicial discipline needs to be followed in preference to any other judgements - the impugned order which extended the benefit of 25% of payment of penalty is incorrect and liable to be set aside – simultaneous penalties imposed under Section 76 and 78 is upheld – revenue appeal allowed
delNoti22
Delhi: Revision in rate of tax on Petrol & Diesel
odiNoti1465
Odisha Value Added Tax (Amendment) Rules, 2016 - Amendment in Rule 6, 9, 27, 27A, 30, 33, 40, 41, 45, 49, 50, 57, 59, 65, 81, 86, 87, 125, Omission of Rule 8, 28, 32,48 and Insertion of new Rule 11A, 49A, 49B, 59A, 66A
dgftTN14
DGFT: Trade Facilitation Measures
jharOrder98
Jharkhand: Extension of Karasamadhana Scheme, 2015
mahaNotiCR102
Maharashtra: Amendment regarding diplomatic authorities and International Organisation
Summary for the month of January: List of updates from 1st January to 15th January
20th of Jan
MADHYA PRADESH NOTIFICATION
mpNoti03: Exemption from Entry Tax under Industrial Promotion Policy, 2014
mpNoti04: MP Commercial Tax Act - Amendment in certain notification - 'Special package / Industrial Promotion Policy' [Download link]
mpNoti05: MPVAT Act - Amendment in certain notification - 'Special package / Industrial Promotion Policy' [Download link]
mpNoti06: Entry Tax - Amendment in certain notification - 'Special package / Industrial Promotion Policy' [Download link]
mpNoti07: Amendment in department's Notification No. F-A-3-25-2010-1-V(101) dated 13th December, 2010
mpNoti08: Madhya Pradesh Bakaya Rashi (Sick and Closed Industrial Units) Saral Samadhan Yojna, 2014 [Download link]
mpNoti09: Madhya Pradesh Bakaya Rashi (Sick and Closed Industrial Units) Saral Samadhan Yojna Niyam, 2014 [Download link]
apCir152
Andhra Pradesh: e-CST Way bills to be generated electronically for commodities figured in the CST RC – e-Waybills (VAT) to be generated for sensitive commodities figured in VAT RC
wbNotiFT59
West Bengal Sales Tax Act, 1994 - Appointment of Tax Recovery Officer
wbNotiFT60
West Bengal Value Added Tax Act, 2003 - Appointment of Tax Recovery Officer
cuNoti04
Customs: Exemption to certain specified medical device
cuNoti05
Customs: Exemption to certain specified medical device
mediDevices
PIB: Task Force recommendations regarding rationalization of customs duty structure for Medical Devices Sector so as to promote domestic manufacturing of medical devices.
cuNoti01CVD
Customs: Levy definitive countervailing duty on import of Castings for wind-operated electricity generators exported from China
2016-VIL-36-ALH
M/s
YUVRAJ TRADING COMPANY Vs STATE OF U.P.
U.P. Value Added Tax Act - Section 48(7) - person
incharge of goods - seizure order – challenge to release of goods in favour of
driver in part - HELD – When the goods are detained it is not humanly possible
to serve the notice to the owner of the goods - In such circumstance, unless
otherwise instructed by the owner, the person incharge of the goods would be
the driver - there is proof that the driver deposited a sum of Rs. One lac
towards security - the goods released by the Tax Department in favour of the
driver was in consonance with the provision of Section 48(7) of the Act as the
driver was the person incharge at that moment of time - from the provision of
Section 48 that there is no embargo of releasing the goods in part. In the
absence of any provision it is the discretion of the authority to release the
goods either upon receiving the entire amount as demanded or release a part of
the goods upon furnishing security to that extent – assessee writ petition
fails and is dismissed
2016-VIL-37-MAD
PRIME HITECH ENGINEERING LTD Vs THE COMMERCIAL TAX OFFICER (CT)
Tamil Nadu Value Added Tax Act – Section 70 - Detention of goods - failure to comply with the provisions of the Act for transport of VI Schedule goods – HELD – since the petitioner is willing to pay the actual tax to be paid for the purpose of release of goods and on such payment, the goods detained may be directed to be released – petition disposed
CENTRAL EXCISE SECTION
2016-VIL-34-GUJ-CE
COMMISSIONER OF CENTRAL EXCISE Vs DASHION LTD
Central Excise – Cenvat Credit – distribution of credit by input service distributor - levy of penalty under Section 11AC of CEA, 1944 – HELD - objection of the Department that credit from one unit was utilized for the purpose of duty liability of other unit without pro rata distribution by the input service distributor would not survive in view of no previous restriction of this nature flowing from Rule 7 of the Rules of 2004 - entire situation is Revenue neutral assessee had availed only 20% of the credit for payment of service tax and the balance was paid in cash - non-registration of the unit as input service distributor - there is nothing Rules of 2005 or in the Rules of 2004 which would automatically and without any additional reasons disentitle an input service distributor from availing Cenvat credit unless and until such registration was applied and granted – the Tribunal has rightly did not disentitle the assessee from the entire Cenvat credit availed for payment of duty
2016-VIL-54-CESTAT-MUM-CE
SUNIL FORGING AND STEEL IND Vs COMMISSIONER OF CENTRAL EXCISE, BELAPUR
Central Excise - Classification of forged round bars – Limitation - Chapter Heading 72.14 as claimed by appellant or under Chapter Heading 73.26 as claimed by revenue – Demand of differential duty - Appellant contesting matter on merits as well as on limitation – HELD - The Explanatory note to Chapter Heading 72.14 indicates that the pieces cut from bars and rods are not eligible to be classified under 72.14 - Forged round bars are correctly classifiable under CH 73.26 and not CH 72.14 of the CETA, 1985 as these goods are not bars and rods of iron and non-alloy steel but they are some articles having definite shape but not further worked upon – during the material period there was no system of approval of the classification list filed by the assessee, at the same time the department cannot shirk away from their responsibility that they were aware of the classification of the product. It is on record that appellant was filing monthly returns indicating therein the clearances of forged articles by availing benefit and paying lesser duty - The audit report which has been produced before us indicate that this issue was not raked by the audit team would mean that it was accepted by the audit team that the classification of products is under Notification 72.14. Now the department cannot say that EA 2000 audit was not for the classification of the product and was for other procedural aspects - assessee appeal succeeds on limitation - Since the demand of duty liability is set aside on limitation, the question of imposing interest or penalties on both the appeals does not arise - The impugned order is set aside and the appeal is allowed on limitation
CUSTOMS SECTION
2016-VIL-55-CESTAT-AHM-CU
M/s RAWMIN MINING AND INDUSTRIES PVT LTD Vs COMMISSIONER OF CUSTOMS (PREV.), JAMNAGAR
Customs - refund - duty paid on the basis of Wet Metric Tons (WMT) - appellant’s contends duty liable to be paid on the basis of Dry Metric Tons (DMT) - whether refund is eligible of the duty paid in excess on the basis of DMT of the goods - shipping bills not mentioned whether the quantity exported is in DMT or WMT - whether the refund claim is sustainable without challenging the assessment of the shipping bills – HELD – Appellant were covered under the Self Assessment Scheme and had filed the shipping bills, assessed it and paid the duty mentioned in the shipping bills, on their own. They also did not claim provisional assessment, nor had they specifically brought it to the notice of the Customs Officers that as per the contract terms the goods are to be valued on DMT quantity basis - the shipping bill was assessed finally on the basis of information declared by the appellants and since the assessments had become final, appellant’s claim for refund on the basis of quantity of goods as per DMT is not sustainable - appeals are dismissed
2016-VIL-56-CESTAT-MUM-CU
M/s VIJAY MARINE SERVICES Vs COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, GOA
Customs – Demand of recovery of Cost Recovery charges when no Customs officer has been posted to the unit – rate of Cost Recovery charges – HELD - so far the issue of recovery of supervision charges is concerned, it is a matter where the CESTAT has jurisdiction as such charges are collected in exercise of powers under Customs Act, however, in respect of rate at which the charges are to be recovered, it is an administrative decision against which the appeal before CESTAT is not maintainable – in the case where no services are provided, no cost recovery charges can be demanded - no cost recovery can be done when there was no officer specifically posted on cost recovery basis - rate at which cost recovery is made is administrative decision at which CESTAT has no jurisdiction – In favour of assessee
SERVICE TAX SECTION
2016-VIL-57-CESTAT-DEL-ST
M/s WHIRLPOOL OF INDIA LTD Vs CCE & ST, NEW DELHI
Service Tax - Technology Transfer fee – IPR service - deduction of R&D cess from service tax paid on brand fee – Cenvat Credit – not-maintenance of separate accounts - Demand for excess utilisation of CENVAT credit (beyond 20%) on the ground that the appellant provided taxable as well exempted services and did not maintain separate accounts – HELD - Revenue could not show copies of the ST3 returns referred to in the show cause notice to substantiate its contention - an ST -3 return cannot be a conclusive evidence of providing/not providing exempted service - Adjudicating authority is only bound by the orders of the superior adjudicating authority like CESTAT and the observations of the Committee of Chief Commissioners are of administrative nature and not of quasi-judicial nature to have any binding effect on adjudicating authority. Thus there is no doubt that even in the opinion of the adjudicating authority, component of demand confirmed on account of non-maintenance of separate accounts of taxable and exempted services is not sustainable - Demand under IPR service on technology transfer fee – HELD - It is evident that the agreement is entered for the purpose of supply of technology/technical assistance / information by Whirlpool, USA to the appellant and the remuneration received by Whirlpool, USA is only for the use of the same by the appellant. There is nothing on record that any of the said technology/technical know-how/information is registered or patented under Indian law - Transfer of technology and technical assistance do not fall in the ambit of intellectual property rights service as Revenue has not shown that they were recognised under any law in India during the relevant period – Demand dropped - Demand on account of deduction of R&D cess from service tax paid on brand fee under IPR service - no service tax was paid under IPR service on the amount paid for such technology transfer which means that the appellant also was of the view that such technology transfer was not in relation to IPR service - Consequently, the appellant was not eligible to deduct the R&D cess it paid on technology transfer from the service tax payable under IPR service as such technology transfer was not in relation to intellectual property service. Thus the component of impugned demand is sustainable on merit - the extended period in the present case is not invocable which will make these components of the impugned demand time-barred because the show cause notice was issued on 05/04/2010 for the period up to March 2008 - The impugned demands are unsustainable and same is set aside and the appeal allowed
2016-VIL-35-GUJ-ST
M/s RAVAL TRADING COMPANY Vs COMMISSIONER OF SERVICE TAX
Finance Act, 1994 - Penalty - fraud, collusion, willful misstatement, suppression of fact - Simultaneous penalties upon the assessee both under Sections 76 and 78 – HELD - with the introduction of further proviso to Section 78 whenever penalty was imposed under Section 78, no further penalty could be levied under Section 76 - In view of the nature of proviso to Section 78 and the relevant position of the two statutory provisions both pertaining to penalty, the proviso to Section 78 was in the nature of clarificatory amendment and not creating a liability for the first time - Even without the aid to this further proviso to Section 78, one entire plausible view was that the situation envisaged under Section 76 would exclude those cases covered under Section 78. In other words, Section 76 would cover only the cases of non-payment of service tax which are not related to fraud, collusion, willful misstatement, suppression of facts or contravention of any of the provisions with the intent to evade payment of service tax since legislature had already provided for penalty in Section 78 in such situations. Thus further proviso to Section 78 made it explicit which was till then implicit - penalty under Section 76 is deleted and penalty imposed under Section 78 is upheld
Guest Article
rtiPunjab: Stipulated time limit under Punjab Right To Service Act, 2011 - Services of the Designated Officers, Punjab
bihNotiSO12
Bihar: Amendments in Bihar Value Added Tax Rules, 2005 - Amendment in Rule 14 & 17 - Determination of value of stock transfers outside the State
21st of Jan
2016-VIL-40-KAR
M/s MYSORE POLYMERS & RUBBER PRODUCTS LTD Vs ASSISTANT COMMISSIONER OF COMMERCIAL TAXES
Karnataka Tax on Entry of Goods Act - levied entry tax at 5% on Rubber Process Oil (RPO) on the ground that Rubber Process Oil is a lubricating agent and classified as “Tar and others” – assessee contention impugned assessment orders lack jurisdiction and are opposed to law – HELD – the classification made is apparently off the mark and without basis as the opinions furnished by two bodies, namely, Indian Rubber Institute and Indian Oil Corporation Limited confirms that RPO is used in the manufacture of rubber products not as a lubricating agent but as an input for plasticizing qualities and intended use and the only use is dissolution medium for rubbers and fillers - conclusion of the revenue that the Rubber Process Oil could be treated as a “Petroleum Product” falling under the classification of “Tar and others” cannot be accepted - The clarification is held to be bad in law – assessee petitions are allowed
2016-VIL-39-MAD
M/s SHRI INDHIRA COTTON MILLS PVT LTD Vs THE ASST. COMMISSIONER OF COMMERCIAL TAX
Tamil Nadu Value Added Tax Act - reject the application under section 84 of the Act - ineligibility of concessional rate of tax on certain turnover due to defective forms – HELD - defects pointed out by the respondent in the impugned proceedings are nothing, but ineligibility of concessional rate of tax on certain turnover due to defective forms which are to be corrected and counter signed by the authority who issued and the same was done subsequently. So there cannot be any justifiable reason to reject the application under section 84 of TNVAT Act, that too, without any opportunity - the impugned proceedings passed by the respondent under section 84 of TNVAT Act is set aside and the matter is remitted back to the assessing authority for passing orders afresh
CENTRAL EXCISE SECTION
2016-VIL-63-CESTAT-KOL-CE
BHARAT PETROLEUM CORPORATION LTD Vs COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, PATNA
Central Excise – refund of pre-deposit – adjustment against unconfirmed demand – HELD - there is no dispute of the fact that the demand is yet to be crystallized - appropriation of the refund amount against an unconfirmed demand, is bad in law and accordingly liable to be set aside - the impugned order is set aside and the appeal is allowed
2016-VIL-59-CESTAT-MUM-CE
DEEPAK NITRITE LTD Vs COMMISSIONER OF CENTRAL EXCISE, RAIGAD
Central Excise Act – Section 2(f) - Manufacture – Cenvat credit – marketability - receiving of product from job worker - clearance of goods after enhancement of product value - demand for reversal of Cenvat credit – HELD - appellant had relabeled, removed moisture from the product which was received from the job worker – for removal of moisture appellant has to empty from the containers and after removal of moisture, quality test repack them in new containers and label the said product as their own products, which activity falls within ambit of chapter note no. 10 of the chapter 29 - removal of moisture is a process that would render the product marketable - CENVAT credit was correctly availed by the appellant, the duty liability is discharged on the transaction value is correct - the case of revenue treating the said product as removal of inputs ‘as such’, is misconceived - the impugned order is unsustainable and liable to be set aside – Assessee appeal allowed
2016-VIL-38-CHG-CE
COMMISSIONER, CENTRAL EXCISE, CUSTOMS & SERVICE TAX, BILASPUR Vs M/s ULTRATECH CEMENT LTD
Central Excise - Cenvat Credit - iron and steel items used as structurals – demand – Revenue appeal against Tribunal order holding demand as time barred – HELD – Tribunal held that since the issue stood decided in favour of the assessee prior to declaration of law by the Larger Bench, the demand was time barred and was set aside without going into merits of the case - any order of the Court or Tribunal amenable to appeal or revision and scrutiny by a superior Court was required to contain the necessary facts involved in the case, stand taken by both the parties, the submission made in support of their respective contentions, law applicable to the issues and lastly, the reasons in support of the conclusion - impugned order is set aside and the matter is remanded to the Tribunal to hear afresh and pass a reasoned and speaking order
CUSTOMS SECTION
2016-VIL-64-CESTAT-MUM-CU
M/s JINDAL DRUGS LTD Vs COMMISSIONER OF CUSTOMS (EXPORT), MUMBAI-I
Customs - refund consequent to Hon'ble Supreme Court order - refund governed by Section 11B CEA, 1944 - taxes and duties paid under protest – burden to proof unjust enrichment – HELD - Taxes and duties paid under protest do not automatically become amounts recoverable from the government. Taxes and duties paid under protest are treated differently in law. It has been held by Hon’ble Supreme Court that the refunds of the duty paid under protest are to be tested under provisions of Section 11B of CEA, 1944, including those for the Unjust Enrichment - mere production of copy of ledger account showing refund amount as customs duty paid under protest is not sufficient to establish that they have not passed on the burden of duty to their customers - The Ledger or Journal simply records the entries as Duties Paid under Protest. There is no basis of claim that the same are recoverable from the Customs. No sales invoices or other documents have been produced to original adjudicating authority to substantiate the claim of not passing the burden of duty to the clients - The burden of unjust enrichment can only be discharged on the basis of concrete evidence and the evidence submitted by the appellant does not discharge this burden - The appeals are dismissed
2016-VIL-61-CESTAT-DEL-CU
M/s PERNOD RICHARD INDIA LTD Vs C.C., NEW DELHI (ICD, TKD)
Customs – Import of Concentrates of Alcoholic Beverages - imports from related party – clearance under provisional assessment – Demand for differential duty - detention notices without complying the directions of Tribunal – remand order of Tribunal - HELD - the adjudicating authority has not complied with the Tribunal directions and detention notices were issued to the appellant, which is against the directions of this Tribunal and the adjudicating authority was not warranted to issue such detention notices without complying the directions of this Tribunal. Therefore, the orders of the detention notices to demand duty and interest are set aside – matter remanded
SERVICE TAX SECTION
2016-VIL-65-CESTAT-CHE-ST
SIFY TECHNOLOGIES LTD Vs COMMISSIONER OF SERVICE TAX, LTU - CHENNAI
Service Tax – Cenvat Credit - Rule 6 (2), Rule 6 (3) and Rule 6 (3A) of CCR, 2004 - inter-departmental adjustment of Cenvat credit - whether Cenvat Credit of service tax paid on input services availed by service departments allocated to the departments providing taxable service and exempted service shall disentitle the appellant to such credit - whether for allocation of cenvat credit to the departments providing exempted service shall result in disallowance of Cenvat credit availed by the departments providing taxable service – HELD - reading of sub-rule (2) and sub-rule (3) of Rule 6 of CCR 2004 makes clear that sub-rule (3) contains overriding provision which is independent in its nature irrespective of anything stated in sub-rule (1) and sub-rule (2) – by maintaining its record which enabled the appellant to substantially allocate the cenvat credit of service tax suffered by the departments in support services and partly to the department in Exempted Services. It has complied to the provisions of sub-rule (2) of Rule 6 - Once the conduct of the appellant in the manner indicated by the material facts is very clear because of the proportionality of the credits allocated, due to its division of the department and maintenance of records, there cannot be any presumption by Revenue that the appellant's case falls under Rule 6 (3) of CCR 2004 - the order passed by the Authority below is unreasonable for the reason that as against credit allocated to the department which provided exempted service, disallowance of entire credit allocated to departments providing taxable service is contrary to the principal of proportionality. Therefore, entire disallowance does not call for any decision in favour of Revenue - appeal is remanded to the adjudicating authority to complete the mathematical exercise and verification – assessee appeal succeeds fully on penalty and on merit
2016-VIL-62-CESTAT-DEL-ST
M/s SARTHAK CONSTRUCTIONS Vs CCE & ST, INDORE
Service Tax – Refund - builders/ promoters - discharge of burden to establishing that the burden of tax was not passed on – refund denied on ground of unjust enrichment – payment of service tax under industrial construction service – HELD - The Commissioner (Appeals) has held that the appellant was not promoter/builder of residential complex only on the ground that the appellant made payment of service tax under industrial construction service and not under residential complex service - payment of service tax under code number assigned to Industrial Construction Service cannot be a clinching evidence to discard the assertion of the appellant that it was promoter/builder of residential complex – the impugned service tax was paid for the months of August and September, 2006 and as has been also held by Supreme Court in the case of CCE Vs M/s L&T Ltd. no service tax was payable on the service rendered under works contracts prior to 1.6.2007. It is immaterial that the service provider was not registered under VAT because evasion of VAT would not automatically lead to liability to service tax - the amount of service tax of which refund was sought was indeed not payable by the appellant - appeal allowed by way of remand for purpose of considering discharge of burden to demonstrate that the burden of impugned service tax was not passed on
2016-VIL-60-CESTAT-CHE-ST
M/s TATA JOHNSON CONTROLS AUTOMOTIVE LTD Vs CCE & ST, CHENNAI
Service Tax - demand of service tax on the royalty amount paid towards the services of technical information, knowhow and technical assistance rendered by the appellant company - service rendered by the overseas company under the category of “Consulting Engineer Services” - overseas provider was not having its office at India – HELD - issue is already stands settled by the Hon’ble Supreme Court in the case of UOI Vs. Indian National Shipowners Association - the demand pertaining to the period from October, 1999 to September, 2002 is not sustainable - impugned order is set aside and is appeal allowed
stInst354
Service Tax: Report of the High Level Committee; recommendation regarding valuation of flats for levy of Service Tax
bihNotiSO16:
Bihar: Entry Tax Act - Amendments to the Schedule
bihNotiSO18
Bihar: Entry Tax Act - Amendments to the Schedule - Rate of Tax
bihNotiSO20
Bihar: Amendmen in the Bihar Tax on Entry of Goods into Local Areas Rules, 1993
dgftNoti31
DGFT: Amendment in export policy of Pulses
dgftNoti32
DGFT: Amendment in import policy conditions of Natural Rubber
punPN150116
Punjab: Launching of Pilot Project for online issuance of ‘C’ Forms
22nd of Jan
2016-VIL-42-KER
INDIAN POTASH LTD Vs STATE OF KERALA
Kerala Value Added Tax Act – Taxable turnover – Subsidy - Sale price – Sale - reimbursement - includibility of amounts received by way of subsidy from the Central Government on the sale of fertilizers in the taxable turnover - Explanation VII to Section 2 (lii) of the Act – Fertilizer (Control) Order, 1985 [FCO] - HELD - The concept of turnover is integrally linked with the concept of sale and accordingly, any payment that does not have any nexus with the sale transaction, cannot be included in the definition of turnover - the subsidy granted is not in discharge of any liability or obligation by the Government towards the purchaser of the fertilizer. It is a payment made to compensate the importers and manufacturers of fertilizers for the difference between the actual cost of production of the fertilizers and the realized price, consequent to the mandate of the FCO - such a payment cannot be seen as a payment made to the petitioners, on behalf of the purchasers of fertilizers, so as to attract the provisions of Explanation VII to the definition of turnover in Section 2 (lii) of the KVAT Act - deeming the subsidy payment as part of the sale price of fertilizers would result in the anomalous situation of the price of the fertilizer being notionally increased, by the subsidy amount received, thereby occasioning a breach of the provisions of the FCO. Such a result could never have been intended by the legislature – impugned order quashed and assessee appeal allowed
2016-VIL-03-SC-CE
COMMISSIONER OF CENTRAL EXCISE, PUNE Vs HINDUSTAN NATIONAL GLASS AND INDUSTRIES LIMITED
Central Excise – Valuation – Inclusion of additional consideration received from the customers in the form of advance – revenue seeking to add notional interest accrued thereon to the sale price – depression of assessable value - HELD – There should be a connect and link between the money advanced was a consideration paid which could form the basis for depression of sale price. Evidence and material to establish the said factual matrix has to be uncovered and brought on record to connect and link the sale price paid on paper and the “other” consideration, not gratis, but by way of interest free advances - there has to be application of mind by the tribunal regard being had to the amount of money paid by purchasers and what is the effect of the sales made and whether this had the effect of depressing the sale price. The onus would be on the revenue - liberty is granted to the revenue to produce the documents in this regard to discharge the onus – appeal allowed by remand
2016-VIL-67-CESTAT-MUM-CE
SKODA
AUTO (INDIA) LTD Vs COMMISSIONER OF CENTRAL EXCISE, AURANGABAD
Central Excise – Valuation - Rule 11 r/w Rule 8 of the Central Excise Valuation
Rules, 2000 - manufactured cars cleared for own use – duty paid on assessable
value as applicable to other customers - show cause notice on the ground that
the value should be arrived at 115% of the cost of production under Rule 8 of
the Central Excise Valuation (Determination of Price of Excisable Goods) Rules,
2000 – HELD - the cars cleared have not been utilized for further manufacture
of goods but were used by the officials of the company in connection with the
business - Rule 8 is not directly applicable and it would be more appropriate
to determine the value under Rule 11 r/w Rule 4 and the assessee has paid the
duty correctly - extended period is not invokable as the issue involved is
interpretation of law - Assessee appeal allowed and Revenue appeal dismissed
2016-VIL-58-CESTAT-CHE-CE
HYUNDAI MOTOR INDIA LTD Vs COMMISSIONER OF CENTRAL EXCISE, CHENNAI
Central Excise - There is no necessity of the appeal against the demand order which is a consequence of the finalization of the provisional assessment which was principally challenged and already decided
2016-VIL-41-GUJ-ST
GUJARAT STATE FERTILIZERS AND CHEMICALS LTD Vs THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, SURAT-II
Service Tax - Sales promotion activity - commission agents - Rule 2(l) of CCR, 2004 – admissibility of credit of Service Tax paid on commission amount paid to dealers/stockist – HELD - the assessing authority as well as the Tribunal came to factual finding that there was no material on record to establish that the commission agents had incurred any expenses or involved in any means for sales promotion - predominantly the entire agreement was one in the nature of appointing stockist - A fleeting reference to attempt to sales promotion would not change the very basic nature of agreement and convert stockist into sales promotion agent – tribunal order upheld and assessee appeal dismissed
2016-VIL-66-CESTAT-MUM-ST
KHIMJI VISRAM & SONS Vs COMMISSIONER OF SERVICE TAX, MUMBAI-I
Service Tax - Refund claims under Notification No. 41/2007-ST – HELD - Port Service refund was rejected on the ground that the invoice was not issued either by the port authorities or their agent – Refund cannot be denied on this ground alone for the reason that it is an admitted general practice that in respect of Port Services, the port authorities issue invoices for the services in favour of CHA/SLA/C&F Agent and in turn these persons raise invoices to the client and in the present case the service tax amount has been shown in the invoices - Regarding Goods Transport Agency Service, merely because invoice number and/or shipping bill no. not mentioned in the lorry receipt, but from other details and reference of goods it can be established the correlation of GTA Services - However, even though specific declaration is not there but from other details the nexus of the service with the export goods can be established, which is sufficient for refund - Refund of services such as Custom House Agent Service, Storage & Warehouse Service was rejected only on the ground that the conditions of the Notification were not complied with – if with one or other documents either on the basis of reference of documents or identity of the goods, it clearly establish the correlation between the input services and export goods, then this procedural condition even if not complied with scrupulously, refund cannot be rejected - The conditions prescribed in the Notification are directory and not mandatory - such conditions are only to ascertain the nexus between the services and export goods. If, with other corroborative documents, the same purpose is served as mention in the ‘conditions’, the refund should be allowed – Assessee appeal allowed by remand
rajNoti116
Rajasthan Amnesty Scheme-2016
puduNotiGO4
Puducherry: Setting up of 'Puducherry Traders' Welfare Board'
2016-VIL-70-CESTAT-MUM-CU
COMMISSIONER OF CENTRAL EXCISE, KOLHAPUR Vs M/s MATHER PLATT PUMPS LTD
Customs – Supply to SEZ unit - demand of 10% of the value of the goods cleared to developers of SEZ where the supplies to developer of SEZ is deemed as export - whether the amendment to Rule 6(6)(1) of CCR 2004 by notification 50/08-CE dated 31.12.2008 would have retrospective effect – HELD - the goods cleared to developer of SEZ are deemed to be export and for such clearances, provisions of sub-rule (1), (2), (3), (4) of Rule 6 of CCR 2004 would not apply and consequently there is no requirement of payment of 10% of the value of the goods cleared to SEZ developers - the amendment to Rule 6(6)(1) to be retrospective and to apply with effect from 10.09.2004 - demand of 10% of the value of the goods supplied to SEZ developers in terms of Rule 6(3b) of CENVAT Credit Rules, 2004 is not sustainable – Revenue appeal dismissed
2016-VIL-69-CESTAT-CHE-CU
M/s BATHEL EXIM INTERNATIONAL PVT LTD Vs COMMISSIONER OF CUSTOMS, TUTICORIN
Customs – re-export of confiscated of the goods – levy of reduction fine – HELD - section 125 of Customs Act does not call for scheme of law that on the re-export of goods, there could be no redemption fine and duty leviable – appellant is directed to deposit Rupees fifty thousand only towards redemption fine and entire amount of penalty and make prayer for re-export since mis-declaration surfaced on record - Mis-declaration being found to be deliberate, imposition of penalty of Rs. One lakh is uninterfered - appeal is partly allowed
dgftTN15
DGFT: Specifying number of mandatory documents required for Export and Import
dgftNoti33
DGFT: Amendment in Paragraph 4.18 of the Foreign Trade Policy 2015-20 - Regarding Import of Natural Rubber
stInst163
CBEC: Regarding withdrawal of department’s appeals pending before High Court / CESTAT
goaNoti132
Goa: Amendment in Schedule C - Regarding purchase of the Motor Car by Indian Armed Forces
ceNoti03
Central Excise: amend Notifications No.56/2002-CE & No.57/2002-CE so as to insert a sunset clause of 31.03.2016 and to deny the benefit of the exemption to goods on which certain specified processes have been undertaken
mpNoti10
Madhya Pradesh: Lists the goods which require to carrying an invoice, bill or challan when brought from a place outside the State of Madhya Pradesh to a place inside the State
mpNoti11
Madhya Pradesh: Enhancemnet in Additional Tax on Petrol & Diesel
25th of Jan
2016-VIL-44-KER
BHARATI TELEMEDIA LTD Vs UNION OF INDIA & THE STATE OF KERALA
Kerala Tax on Luxuries Act - Constitutional validity of the Kerala Tax on Luxuries Act, to the extent it seeks to levy luxury tax on Direct to Home (DTH) Services - competence of the State Legislature to impose the levy – Entry 62 of List II of the VIIth Schedule to the Constitution - HELD - State legislature had the competence to legislate on the aspect of "luxury" provided by the petitioners to their customers, notwithstanding that the Parliament may have the legislative competence to legislate on the aspect of "service" rendered to the customers - merely because the statute concerned provides for the levy to be borne by the service provider, the nature of the tax as a tax on luxuries is not altered. For determining the legislative competence of the State Legislature, one needs look only at the nature of the tax levied and whether the said tax can be traced to any of the specified fields of legislation under List II of the VIIth Schedule to the Constitution - there cannot be a further sub-classification among persons who come within the ambit of the levy based solely on technological differences in the system of delivery of entertainment in both the services - levy of luxury tax on DTH operators, to the exclusion of a similar levy on cable operators, with effect from 01.04.2011, is discriminatory and violative of Article 14 of the Constitution of India - while the State Legislature has the legislative competence to levy a tax on the luxury provided by a Direct to Home [DTH] Broadcasting service provider, the levy of luxury tax on DTH service providers to the exclusion of a similar levy on cable operators with effect from 01.04.2011 is discriminatory and violative of Article 14 of the Constitution of India. Taxes, if any paid by the petitioners during the period from 01.04.2011, shall be refunded – Writ petition allowed
2016-VIL-43-HYD
FELGUERA GRUAS INDIA PVT LTD Vs THE ASSISTANT COMMISSIONER (CT)
Andhra Pradesh Value Added Tax Act – Work Contract - Turnover - supply and service agreements - Assessment – contracts executed from branch office in Tamil Nadu - assessment and imposition the tax under APVAT Act on the ground that the contracts awarded were entered into at Visakhapatnam where the petitioner’s company was registered under the Andhra Pradesh VAT Act and the branch office in the State of Tamil Nadu came into existence after entering into the contract - whether the entire works contract which is to be executed in the State of Tamil Nadu where an assessment could be made to bring the said transaction within the purview of the AP VAT Act and the assessment could be made – HELD - the assessment order does not indicate what are the goods which have been transported from Visakhapatnam and at what point of time and whether they relate to the execution of contract or supply of local goods or supply of imported goods. Further, the assessing officer also erred in stating that the contract was entered into in Visakhapatnam as the very documents indicate that the said three contracts were entered into at Mumbai – the judgement of 20th Century Finance Corporation case was misquoted and the statement of the assessing officer would be right with respect to the situs of the contract only when the goods were available at the time of the contract and the same does not hold good when the goods are to be supplied in later point of time - the assessment so far as the bringing transaction relating to M/s. Tuticorin Coal Terminal Pvt Ltd is concerned, is liable to be set aside - the writ petition is allowed setting aside the assessment order giving liberty to the AO to initiate appropriate proceedings
CENTRAL EXCISE SECTION
2016-VIL-45-MP-CE
MECH & FAB INDUSTRIES Vs UNION OF INDIA
Central Excise - benefit of the Kar Vivad Samadhan Scheme, 1998 – Denial of benefit of Scheme on ground of mis-declaration – HELD - the correctness of the declaration submitted in the prescribed form for settlement of the dispute under the Scheme, cannot be judged on the basis of the stand taken by the assessee in the correspondence exchanged with the Department, prior to submission of such declaration. That approach will be counterproductive to the purpose and intent for which the Scheme has been launched – for resolution of the disputes - the declaration cannot be jettisoned at the threshold by referring to the stand taken by petitioner in its previous correspondence exchanged with the Department. Instead, the Department ought to have treated the disclosures made in the declaration by the petitioner as relevant facts; and the correctness thereof could be judged on its own merits – The impugned communication, is quashed and set aside - the Appropriate Authority is directed to process the proposal of the petitioner under the Scheme as per law - The writ petition is allowed
2016-VIL-75-CESTAT-CHE-CE
M/s CHENNAI MICRO PRINT PVT LTD Vs CCE, CHENNAI - II
Central Excise - SSI exemption - Notification No. 8/2003-CE - packing materials cleared to the exporting unit - deemed export – turnover excluded while computing SSI exemption limit – denial of SSI exemption – branded goods - Extended period - HELD - Appellant’s grievance that if at all dutiliabity arises by aggregation of different clearances, CENVAT credit of duty/tax paid on inputs and input services used in manufacture of dutiable goods should be allowed, deserves consideration - The leaflets manufactured by the appellant are not branded goods since that was not traded as such for purchase by general public. Such fundamental test negates stand of the appellant that it manufactured branded goods. Accordingly, turnover therefrom shall enter into aggregation process to compute the limit prescribed by the Notification - there shall be no penalty upon readjudication. However, duty liability if any arises shall follow interest if such duty is not already paid or short paid – Matter remanded
2016-VIL-76-CESTAT-MUM-CE
M/s CABLE CORPORATION OF INDIA LTD Vs COMMISSIONER OF CENTRAL EXCISE, MUMBAI-V
Central Excise – Clearance to SEZ - whether sub-rule 6 exempted the clearance to developers of SEZ from mischief of sub rule 1 to 4 of Rule 6 with retrospective effect – HELD - Rule 6(6)(i) exempted, from the mischief of the provisions of sub-rule 1, 2, 3 & 4 of Rule 6 of CCR, 2004, the clearance made to unit at SEZ - The amendment to Rule 6(1) of the CCR, 2004 by the amending Notification No. 50/2008-C.E. (N.T.), dated 31-12-2008 shall be applicable w.e.f. 10-9-2004 when the CCR, 2004 came into existence and, therefore, exception provided under Rule 6(6) of Cenvat Credit Rules, 2004 shall be applicable to supply of exempted goods both to SEZ units and SEZ developers / promoters - The fact that the appeal on the said issue has also been admitted by the Hon'ble Bombay High Court where there is no stay, cannot do much use of the Revenue - the impugned order is set aside and the appeal is allowed
CUSTOMS SECTION
2016-VIL-72-CESTAT-CHE-CU
M/s. M.M. ENTERPRISES Vs COMMISSIONER OF CUSTOMS (EXPORT), CHENNAI
Customs - whether refund of additional customs duty shall be allowed in respect of the imported goods suffering such duty when sold charging sales tax thereon - issuing invoices not exhibiting amount of the duty on such invoices – HELD - additional customs duty is refunded when imported goods suffering additional duty of customs is sold in the domestic market charging local or central sales tax as the case may be - exhibiting of no duty element in the invoice, the buyer of the goods is not permitted to take any duty credit thereby – this itself be a satisfaction of the condition prescribed under clause (b) of para 2 of the Notification No. 102/2007 – Assessee appeal allowed
2016-VIL-74-CESTAT-AHM-CU
SHRI JAYESH S SHAH Vs COMMISSIONER OF CUSTOMS, KANDLA
Customs – import of branded diapers, cosmetics and toiletries mis-declared as unbranded Baby Diapers - penalty under Section 112A – HELD - no dispute that the mis-declared goods have been imported under the name of the proprietorship firm – the proprietor cannot escape from the mischief of importation of mis-declared goods - the duty demanded from the proprietorship firm, alongwith interest as applicable, is upheld – Penalty imposed on supplier of the goods from foreign is also upheld – Appeal dismissed
SERVICE TAX SECTION
2016-VIL-71-CESTAT-DEL-ST
M/s RAJASTHAN TEXTILE MILLS Vs C.C.E., JAIPUR-I
Service Tax – export of goods done under duty drawback claim - Denial of refund on terminal handling charges, documentation charges, CHA charges and on goods transport by road service – Refund under Notification No.41/2007-ST – HELD - The exports were made claiming drawback under All Industry rates. While fixing these rates, Govt. takes into account the inputs and input services used in relation to export goods. As the place of removal in respect of export goods is port of shipment, the services would qualify to be input services. Consequently the impugned refund is hit by the proviso (e) to Notification No.41/2007-ST - unable to agree with the appellant that Notification No.33/2008-ST dated 07.12.2008 in terms of which inter alia the said proviso (e) was deleted should be given retrospective effect, for the reason that it is trite that in the absence of any express or implied provision for retrospective applicability, an amending notification only has prospective effect – Assessee appeal dismissed
2016-VIL-73-CESTAT-DEL-ST
M/s KANWAL COAL CARRIER PVT LTD Vs C.C.E. & S.T., BHOPAL
Service Tax - Section 37C of CEA, 1944 - Service of decisions, orders, summons, etc - rejecting the appeals as time barred – treatment of speed post as Registered Post with Acknowledgement Due (RPAD) as per Section 37C(1)(a) – HELD - during the relevant period, the primary adjudicating orders were required to be sent by RPAD, sending them by speed post would not fulfil the requirement of the said section. The amended provision of Section 37C(1)(a) ibid effective from 10.05.2013 allows sending of the orders by ‘speed post with proof of delivery’ - It is not in dispute that the appeals were filed within the stipulated period after the appellants obtained copies of the primary adjudication orders - requirement of pre-deposit is waived and the appeals are allowed by way of remand
Guest Article
Valuation of flats given to land owner - Board Circular would prevail over Education Guide
cuNoti15NT
Customs: President Award an Appreciation Certificate for "Specially distinguished record of service" to officers of Customs & Central Excise Department
utrNoti26
Uttarakhand: Extension in date for payment of tax /TDS of third quater of year 2015-16
mpCorri10
Madhya Pradesh: Corrigendum to Notification No. F-A-3-02-2016-1-V (10), dated 22.01.2016 - Inclusion of entry 66 - Water storage tanks made of plastics
27th of Jan
2016-VIL-47-BOM
M/s ROHIL ZINC LIMITED Vs THE STATE OF MAHARASHTRA
Bombay Sales Tax Act, 1959 - Rule 54 of the Bombay Sales Tax Rules, 1959 – relevant period for maintenance of records of past transactions – Tribunal – Ex parte order - exercise of power by the Revisional Authority – HELD - This is not a case where any order to the prejudice of the dealer has been passed because of non availability or non production of the records - The Revisional Authority passed the order ex-parte on scrutiny of the case records underlying the assessment order. Thus, the records before the Assessing Authority were taken into consideration – the exercise of the power by the Revisional Authority was questioned by the applicant in a substantive appeal. That has been decided by the initial order - in deciding the Reference Application, the same reasons and conclusions have been reiterated. Once other questions that are proposed raise mixed issues, the court is disinclined to exercise our powers under section 61 of the Act – reference application dismissed
2016-VIL-46-ALH
M/s P.P.G. ASIAN PAINTS PVT LTD Vs DEPUTY COMMISSIONER, COMMERCIAL TAX
U.P. Trade Tax Act – Section 10 (8) - Refund of tax deposited pursuant to assessee appeal being allowed on merits and setting aside of assessment order – petition for release of bank guarantee - HELD - until and unless there is an adjudication and an authority finds that the amount is refundable, no amount can be refunded to the petitioner at this stage since we find that the assessment proceedings are still pending before the Assessing Officer - the prayer for refund of the disputed tax pursuant to the setting aside of the assessment order cannot be granted to the petitioner at this stage - once the assessment order is set aside by the Appellate Authority, the security relating to the demand comes to an end. Once the assessment order is set aside, there is no requirement for the assessee to continue to furnish security or in the instant case, the back guarantee - the Assessing Officer could not insist the petitioner to extend the bank guarantee for a period of five years nor could it direct the bank to ensure that the bank guarantee is extended nor could it direct the bank to encash the bank guarantee - The relief with regard to the refund of the tax deposited is rejected – Petitioner is entitled for release of the bank guarantee – writ petition partly allowed
CENTRAL EXCISE SECTION
2016-VIL-80-CESTAT-CHE-CE
CCE, LTU, CHENNAI Vs M/s CHENNAI PETROLEUM CORPORATION LTD
Central Excise - generation of electricity - whether Low Sulphur Heavy Stock (LSHS) is same as Residual Fuel Oil (RFO) - excisability of RFO - twin tests of excisability – HELD - When the controversy rested on a very crucial question of excisability of RFO whether as LSHS, that point needs determination which was not done by any of the authority so far – the matter is remanded to determine whether LSHS is equal to RFO and if equal, whether RFO is dutiable following the twin test i.e. process whether constituting manufacture and secondly marketability - it is necessary to determine whether the assessee had at any time manufactured RFO and cleared the same issuing any excisable invoice for marketing. The next step for determination is that if at all RFO is dutiable considering that to be equal to LSHS, it is the burden on Revenue to prove whether RFO is marketable. It is also further necessary to determine whether RFO is manufactured by the respondent adopting any process or it is an outcome in the course of manufacture of any other goods. These issues are most crucial for determination - If the authority reaches to the conclusion that RFO is equal to LSHS then the question that shall arise consideration is whether RFO shall get any exemption if that is used in generation of power partly sold to TNEB – matter remanded
2016-VIL-79-CESTAT-MUM-CE
COMMISSIONER OF CENTRAL EXCISE PUNE-I Vs M/s EXIDE INDUSTRIES LTD
Central Excise - eligibility to avail CENVAT credit on the amount of Central Excise Duty paid on capital goods such as moulds and dies - removal of moulds/Dies outside the factory for job work - period involved pre 21/07/1995 and post 21/07/1995 – first appellate authority set aside the o-in-o - HELD – regarding case post 21/07/1995 – post 21/07/1995, the provisions are explicit and allow to clear the moulds to the job workers premises after taking permission from jurisdictional Asst. / Dy. Commissioner as the case may be and in the case in hand it was followed - after receiving the said capital goods were entered in the prescribed registers, subsequently permission was obtained from the Commissioner and the Moulds was removed to the Job Workers for manufacturing - If that being the case, the findings recorded by the first appellate authority is correct and does not require any interference - case prior to 21/07/1995 - the claim of the appellant that these 10 moulds were received prior to 21.07.1995, was sent to job worker after being installed in factory premises and used, for the processing of plastic items is not evidenced - If assessee is able to justify their claim that these 10 moulds were installed in their factory and put to use and subsequently sent to job worker, they may have a case - For this limited purpose, the matter needs reconsideration by the adjudicating authority – Revenue appeal partly allowed by remand
CUSTOMS SECTION
2016-VIL-81-CESTAT-MUM-CU
PEPSICO INDIA HOLDINGS PVT LTD Vs COMMISSIONER OF CUSTOMS (IMPORT), NHAVA SHEVA
Customs – Section 17 – self –assessment - Refund arising out of error in Bill of Entry – rejection of refund on the grounds that the bill of entry was self assessed - reassessment of bill of entry - Commissioner (Appeals) holding that the assessment order was not passed by the proper officer, hence no appeal under Section 128 of the Customs Act can be filed – HELD – the appeals filed by the appellant before the Commissioner (Appeals) were in respect of rejection of their request of reassessment by the Deputy Commissioner. That is in fact an order passed by the officer of Customs which can be challenged under Section 128 of the Act. The Commissioner (Appeals) failed to appreciate this fact – impugned order is set aside and the appeals are allowed by way of remand to the Commissioner (Appeals) to give findings on the rejection of the request of reassessment
2016-VIL-48-KAR-CU
M/s OM TRADERS Vs THE UNION OF INDIA
DGFT - Narcotics - applications for registration of sale contracts for import of poppy seeds from Turkey – challenge to procedure of accepting the earliest applications on a first come first served basis - reason and rationale in adopting a prescription of a provisional cap and a country cap for import – HELD - the petitioner is not an applicant seeking registration of any sale contracts for the import of poppy seeds from Turkey, as against the impugned notification. The mala fides urged against the respondents, in relation to the earlier public notifications are no longer relevant as the respondents have abandoned the said notifications – it has been demonstrated by the respondents in relation to the actual figures as to the number of applicants and the quantity available for allocation, it cannot be said that it leads to any imbalance or is arbitrary. It may not be the best policy that could have been adopted by the respondents, but it cannot be characterized as illegal or arbitrary - The explanation offered by the respondents as to the reason and rationale in adopting a prescription of a provisional cap and a country cap, in so far as the imports from Turkey is concerned, is also acceptable - the petition lacks merit and is hereby dismissed
SERVICE TAX SECTION
2016-VIL-77-CESTAT-CDG-ST
MAKEMY TRIP INDIA PVT LTD Vs CCE & ST, ROHTAK
Service Tax – Pre-deposit - Taxability of services provided to clients located in India on international outbound tour - demand of service tax towards the cost of air ticket under the category of tour operator service or travel agent service – HELD – On the similar issue Tribunal has held in favour of assessee that in such situation it is a case of export of service and the assessee is not liable to pay service tax - as per provision of section 65 (4) of Finance Act, 1994, the air travel agent means any person engaged in providing any service connected with the booking of passage for travel by air - as per section 65 (105) (l) means any service provided or to be provided to any person by an air travel agent in relation to the book of passage for travel by air - the applicant has paid duty as per Rule 7 of Service Tax Rules, 1994 i.e. on concessional rate of duty - the issue remains is with regard to the differential duty payable by the appellant and classification of service, this issue shall be dealt at the time of final hearing - two provisions are available for assessee, in such a situation, it is the choice of the assessee to avail the benefit one of the provisions which is more beneficial to the assessee - the applicant has made out a case for complete waiver of pre-deposit - pre-deposit of entire amount of demand of service tax, interest and penalty is waived - stay application is allowed
2016-VIL-78-CESTAT-MUM-ST
INOX LEISURE LTD Vs COMMISSIONER OF SERVICE TAX, MUMBAI
Service Tax - Business Auxiliary Services – Architect services - Demand under BAS in respect of 'Pouring Fees' and 'Signing Fees' – promotion of third party goods - jurisdiction of AO to adjudicate the case in respect of services received beyond jurisdiction – Validity of extra territorial adjudication by the Commissioner – HELD - The Commissioner has erred in mixing the issue of centralized accounting and centralized registration. The Commissioner of Service Tax is appointed under a notification which authorizes him to exercise powers under Service Tax within the jurisdiction of Mumbai. There is no notification which authorizes him to exercise powers in respect of cases originating outside his jurisdiction. Therefore clearly the adjudication order has been passed beyond the jurisdiction of the Commissioner in respect services rendered outside Mumbai jurisdiction - Service tax on the 'pouring fees' and 'signing fees' received by the appellant within Mumbai jurisdiction – HELD - Reading of the entire agreement holistically leads to only one conclusion, that the appellant were providing services for marketing of goods provided by the client. It is not necessary that to promote the product, the goods have to be owned by the client. Therefore the contention that the appellant is promoting or marketing its own goods because it has purchased the beverages from Coca Cola, does not hold good as the words used in the definition are "goods produced or provided by or belonging to the client"- the service activity involved is not sale of space and time as contended by the appellant. What is sold is the right to advertise and promote the product of the CCIPL - the services provided are covered under BAS - Demand of service tax on 'pouring fees' and 'signing fees' is upheld to the extent of demand on services rendered within the jurisdiction of Service Tax, Commissioner Mumbai - Demand on Architect fees is set aside - interest and penalty is upheld – appeal partly allowed
chndNoti166
Chandigarh: Amendments in Schedule 'A' - Inclusion of 'Battery Operated Vehicles'
apAct4of2016
Andhra Pradesh Value Added Tax (Amendment) Act, 2016 - Amendment of Section 2, 4, 13, 21, 22, 31, 32, 34, 38, 39, 45, 47, 48A, 57, 61, 63; Insertion of new section 4A, 56A; Substitution of section 59; and Amendment of Schedule-IV & Schedule-VI
delCir2701
Delhi: Modification of conditions specified for issuance of statutory forms under the Central Sales Tax Act, 1956
dgftPN57
DGFT: Extension of validity of Agencies as listed in the Appendix 2G of A&ANF of FTP 2015-20 upto 31.05.2016
28th of Jan
2016-VIL-52-MAD
SRI KARTHI CEMENT AGENCIES Vs THE COMMERCIAL TAX OFFICER
Tamil Nadu Value Added Tax Act – filing of appeal before Appellate Deputy Commissioner (CT) as per the direction of single judge order – dismissal of appeal by appellate authority on ground of time barred – writ petition challenging single judge order – HELD - If the appellant had been aggrieved by the order of the Appellate Deputy Commissioner (CT) dismissing the statuory appeal filed by the appellant, the said order ought to have been challenged before the appropriate authority, in the manner known to law - Having accepted the order passed by the learned single Judge and having availed the statutory remedy, by filing an appeal before the appellate authority concerned, it is not open to the appellant to challenge the earlier order passed by the learned single Judge - writ appeal is not maintainable – petition dismissed
2016-VIL-51-MAD
GE POWER CONVERSION INDIA PVT LTD Vs THE ASSISTANT COMMISSIONER (CT)
Tamil Nadu Value Added Tax Act - Challenge to orders of assessment - opportunity of being heard in person - where the question involved was one of determination of certain factual disputes which were a bit complex and not free from controversy, the principles of fairness would encompass personal hearing within the concept of "reasonable opportunity to show cause" - the impugned orders are quashed and the matters are remanded to the respondent for fresh consideration with a direction to afford an opportunity of personal hearing to the petition - Writ petitions are allowed
2016-VIL-50-KAR
M/s A.P.S. INDUSTRIES Vs THE STATE OF KARNATAKA
Karnataka Value Added Tax Act, 2003 – taxability of Lead Sub Oxide – industrial input – assessee seeking classification under ‘metal powders’ as industrial input – revenue classified under residual entry – Commissioner clarification - HELD – The very question framed by the Commissioner is incorrect and it does not pertain to the points canvassed by the petitioner at all. It was not the case of the petitioner that Lead Sub Oxide was an alloy of Lead. It was his case that it was a ‘Lead powder’ and nothing more. Therefore, the manner in which the question is framed and conclusion arrived at on the basis of it is erroneous and cannot be sustained - the manner in which the clarification has been issued is found wanting as it is not the manner in which trade has understood the product and it leads to much confusion apart from the financial implications – the petition is allowed and impugned clarification and demand notice is quashed – This will not preclude the concerned authority from issuing a fresh clarification insofar as the classification under which ‘lead powder’ would fall with reference to the entries in the Third Schedule to the KVAT Act and thereafter, for the authorities to take further steps in line thereof. The petition is allowed as above. The petitioner’s claim that lead powder should be considered as an ‘industrial input’ is left open for consideration
CUSTOMS SECTION
2016-VIL-49-BOM-CU
JSW STEEL LIMITED Vs UNION OF INDIA
DGFT - Incremental Export Incentivisation Scheme - cap or ceiling limit on the quantum of the duty credit scrip – Rejection of applications for export duty credit scrip exceeding Rs. 20 - Notification No. 27(RE-12)/2009-2014 & Notification No. 44(RE-2013)/2009-2014 – Validity of complete and overall cap on the value of the of 2015 duty credit scrip irrespective of the actual incremental growth in exports by virtue of Clarification dated 23rd September 2014 – HELD - That policy extends an incentive for a demonstrated increase in exports. Its purpose is to encourage more exports. The policy’s terms must, therefore, receive an interpretation as would advance its stated purpose, viz., to promote and encourage exports - Where the policy did not itself place any such cap as there is no words of limitation in it, other than those in the eligibility, therefore, that to restricts the incentives in their entirety would therefore be arbitrary, violating the policy’s objective and the mandate of Article 14 of the Constitution of India - The so-called Clarification impugned in these Petitions, dated 23rd September 2014, is clearly incorrect. There is no basis for it whatsoever. It is quashed and set aside - the 2013 Notification places no cap or restriction on the value of the IEIS scrip – Writ petition allowed
2016-VIL-82-CESTAT-MUM-CU
M/s UPS JETAIR EXPRESS PVT LTD Vs COMMISSIONER OF CUSTOMS, CSI AIRPORT, MUMBAI
Customs - Regulation 13 of the Courier Imports & Exports (Clearance) Regulations, 1998 - obligations of authorized Courier - due diligence in respect of consignment - mis-declaration and gross undervaluation of goods – penalty – HELD - in ordinary course of business appellant do not come to know about the actual discretion of the goods or actual value of the same. However, the fact that the weight of consignment was 22 kg and the freight was Rs. 25,000/- but the declared value was less than Rs.3000/- should have raised suspicion - it was possible for the appellant to exercise due diligence in respect of the consignment. Considering that the appellants are in the courier business such consignments are indeed the outliners and needed closer scrutiny - Appeal is partly allowed by reduction in penalty
CENTRAL EXCISE SECTION
2016-VIL-86-CESTAT-DEL-CE
M/s SMI ELECTROWIRE (P) LTD Vs CCE, DELHI-II
Central Excise - disallowance of cenvat credit on the ground that the goods were not actually received by the appellant and that the transactions were bogus – books of account – fraudulent transactions – HELD - when the documents and registers of the appellant are proper, it is for the department who alleges fraud to establish that the invoices issued to the appellant by seller were not genuine. The department cannot take shelter by merely saying seller was involved in fraud of bogus transactions and thus infer that whoever purchased goods from it are also part of the fraudulent transactions – the department has not succeeded in establishing guilt on the part of appellants. The statement of supplier does not contain incriminating evidence against the appellants so as to deny the credit. Further, there is no discrepancy in the statutory records, and returns filed - The department does not allege any defect in the books of account and records. Therefore the allegation raised in the show cause notice against the appellant is not sustainable and the disallowance of modvat/cenvat credit is unjustified - The impugned order is therefore liable to be set aside – assessee appeal allowed
2016-VIL-84-CESTAT-AHM-CE
ELECON ENGINEERING CO LTD Vs COMMISSIONERS OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX, VADODARA-I
Central Excise – Rule 57G of erstwhile Rules, 1944 - Cenvat credit – duty paying document – Delay of over six in taking credit in the RG23A Pt.I – denial of credit – demand, interest and penalty – HELD – The Tribunal in the case of CCE, Hyderabad vs Aurobindo Pharma Ltd. has held that the time limit of 6 months from the date of issue of duty paying document applied to receipt of goods in the factory and not to the process of taking the credit - Revenue accepted this decision and no appeal was filed before the Hon’ble High Court. In the appellant’s own case, the Hon’ble Gujarat High Court upheld the order of the Tribunal on the identical situation. So, there is no reason to take different view in the present appeal – Assessee appeal allowed
SERVICE TAX SECTION
2016-VIL-85-CESTAT-AHM-ST
M/s PURNIMA ADVERTISING AGENCY PVT LTD Vs COMMISSIONER OF SERVICE TAX, AHMEDABAD
Service Tax - Refund pursuant to Tribunal order – refund to appellant instead of depositing the same in Consumer Welfare Fund - applicable date upto which the interest is to be paid with regard to sanctioned refund – HELD - the refund claim was submitted on 24.01.2005 and it was sanctioned on 03.06.2008, but was transferred to Consumer Welfare Fund as it was held that same was hit by unjust enrichment. Therefore, the interest would be payable after three months from the date of submission of refund claim, which means from 24.4.2005. As the refund was sanctioned on 03.6.2008, the interest would be payable up to the date of sanction of refund claim, i.e. up to 02.06.2008 - As the Revenue had sanctioned refund claim on 03.6.2008 and transferred the amount to Consumer Welfare Fund, Revenue cannot be held to be liable to grant interest subsequent to the period from 03.6.2008. The appellant instead of Welfare Fund became eligible for the refund amount in the light of the order of the Tribunal. Hence, whatever was due to Welfare Fund was liable to be transferred to the Appellant. The appellant is therefore rightfully entitled for the refund amount along with interest for the period from 24.4.2005 to 02.6.2008, as held by the Commissioner (Appeals) - no reason to interfere with the impugned order-in-appeal and the hence same is upheld – assessee appeal dismissed
2016-VIL-83-CESTAT-CHE-ST
M/s RAJA CHARITY TRUST Vs CCE, TIRUNELVELI
Service tax - Business Auxiliary Service or Clearing and Forwarding agent service - appellant seeking to bring the activities carried out by it under the scope of Business Auxiliary Service - Revenue contends that following the classification rule, the appellant be brought under the scope of ‘Clearing and Forwarding Agency’ service – HELD - Law is well settled that the scope of taxing entry is to be strictly construed and there is no intendment about tax - the activity carried out by the appellant as per agreement to the scope of ‘Business Auxiliary Service’ (BAS). This satisfies the principle of classification laid down in Section 66 of the Finance Act, 1994 and excludes the other category of classification claimed by Revenue for the reason that the taxing entry most specifically attracts an activity shall bring that service into the same class and no other class by any remote construction - the appellant’s activity shall fall under the taxing entry of BAS without being taxable – assessee appeal is allowed
mahaCir3T
Maharashtra: Regarding extension of time for filing VAT Audit Report in Form 704 for year 2014-15
mahaCir2T
Maharashtra: Registration under the Maharashtra Tax on Luxuries Act, 1987 and The Maharashtra Tax on the Entry of Goods into Local Areas Act, 2002
tnNotiGO9
Tamil Nadu: Exemption to Thiruvalargal GandhiNiketan Rural Welfare and Development Trust
upCir1516062
Uttar Pradesh: Regarding submission of CST Forms
goaOrder4885
Goa: Extension in date for filing of quarterly returns for the quarter ending 31st December, 2015
mpNoti13
Madhya Pradesh: Erection of Check Post & barrier
apCir152
Andhra Pradesh: Time allowed to dealer to add the Sensitive Commodities in CST RC & VAT RC
cuCir02
Customs: Instructions regarding clearance of Livestock and Livestock products
cuNoti6
Customs: Amendment in notification No. 12/2012- Customs dated 17.03.2012
cuNoti1ADD
Customs: Levy of definitive anti-dumping duty on Mulberry Raw Silk
cuNoti2ADD
Customs: levy definitive anti-dumping duty on Melamine
cuNoti3ADD
Customs: Rescinds Notification No. 10/2010 - Customs dated 19th February, 2010
29th of Jan
gujNoti5
Gujarat: No input tax credit on cigarette when sold/resold in the course of inter-state trade and commerce
delCir36
Delhi: Extension in date for filing of online return for third quarter of 2015-16
2016-VIL-56-UTR
RECKITT BENCKISER (INDIA) PVT LTD Vs STATE OF UTTARAKHAND
Uttarakhand Value Added Tax Act – Section 6(3)(d) – Input tax credit - Branch transfer - denial of Input Tax Credit in respect of packaging material, containers etc., purchased locally, utilized in the production of manufactured / finished goods and sent outside the State on branch transfer - alternate remedy – maintainability of writ petition - HELD – The special appeals were filed on behalf of Hindustan Unilever Limited on similar issues against the judgment and order of learned Single Judge without meeting any success - the SLPs were preferred before the Hon’ble Supreme Court, the same were also dismissed - Since the propositions of law have already been dealt with and discussed by learned Single Judge and Hon’ble Division Bench and SLPs against which have also been dismissed, therefore, no useful purpose will be served by discussing those provisions again - Writ petitions fail and are dismissed at the admission stage
2016-VIL-55-MAD
M/s SRC PROJECTS (P) LIMITED Vs THE ASSISTANT COMMISSIONER (CT)
Tamil Nadu Value Added Tax Act - Section 2(27) – manufacture - Section 2(11) - capital goods – input tax credit – Input Tax Credit on the capital goods and its spare parts - availment of Input Tax Credit on ‘crushing plants’, ‘excavators’ and ‘front end loaders’ and its spares used in the mining activity – whether crushing of rocks and convert them into small stones of different sizes would amount to manufacture – HELD - Crushing of boulders into Blue Metals would not amount to manufacture - After many opportunities and personal hearing, the respondent has rejected the objections of the Petitioner by holding that the dealers have merely crushed the stone boulders into smaller size as Blue Metal Jelly and therefore, no new commodity has come into existence falling within the definition of 'manufacture' under Section 2 (27) of the Act - The issue involved here is whether the activity of extracting, altering and processing brings into existence a different commodity altogether has to be decided only by the authorities. Each activity has to be analysed - the Court is of the view, that the proper recourse for the Petitioner is only to approach the appellate authority - Court is not inclined to interfere with the impugned orders and these Writ Petitions are liable to be dismissed
CENTRAL EXCISE SECTION
2016-VIL-90-CESTAT-CHE-CE
COMMISSIONER OF CENTRAL EXCISE, CHENNAI-I Vs INDIAN STEEL & ALLIED PRODUCTS
Central Excise – Clandestine removal - preponderance of probability – HELD - merely on the weighment slips from the weighbridge owner and statements and private worksheets of the Bill traders, it cannot be inferred that quantity shown in the weighment slips are actually received by the appellants used in the manufacture of goods and clandestinely - No evidence advanced by Revenue to connect these weighment slips with either supplier / buyer or to the assessees or to the transporter or to sale proceeds etc. Therefore the burden of proof is on the Revenue to discharge onus and the revenue has not proved in this case - The investigation failed to bring out any evidence in support of the clandestine removal, receipt of raw material inside the factory or clearance of finished goods from the assessee’s premises or payment receipt of finished goods or any transport documents of finished goods or raw materials into the factory. In the absence of any of the records there is no justification of the Revenue's contention and preponderance of probability may not be applicable to the present case - the duty demand proposed in SCN on clandestine manufacturer and removal has been made only based on assumption and theoretical calculation without any corroborative evidence, hence it is not sustainable - the impugned order is upheld and Revenue appeals are rejected
2016-VIL-53-AP-CE
COMMISSIONER OF CUSTOMS & CENTRAL EXCISE Vs M/s RAYAN PHARMA LIMITED
Central Excise – non-payment of duty – burden of proof - Demand – Revenue appeal against tribunal order - HELD - The factual aspects of the matter are not in dispute. As could be seen from the order of the Tribunal, it is clear that the entire burden of proving that the respondent-assessee has collected money representing excise duty rests on the Revenue, but the order-in-original does not disclose that the Department has discharged the burden of proof, as such, the Tribunal was right in remanding the matter to the original authority to reconsider and decide the case on merits - appeal is devoid of merit and dismissed
CUSTOMS SECTION
2016-VIL-88-CESTAT-CHE-CU
M/s MRF LTD Vs CC, CHENNAI
Customs – Interpretation of ‘Information Technology’ software in terms of entry 285 r/w CTH 85.24 in explanation to Notification No. 17/2001-Cus. dated 01.03.2001 - adjudicating authority holding that the software so imported was not “Information Technology” software to fall within the scope of the explanation given in the sl.no. 285 of the Notification – denial of duty exemption - HELD - the ld. Commissioner (Appeals) has gone beyond the scope of SCN to reclassify the imported software which was not the dispute in the SCN. The only dispute was whether the software imported was “Information Technology” software and whether that is in accordance with explanation given under sl.no. 285 of the notification to grant notification benefit - Having examined the scope of the explanation and utility of the software and in absence of any contrary evidence or authentic literature, from the revenue, to discard the claim of the appellant it can irresistibly be concluded that the software imported by the appellant was ‘Information Technology’ software – assessee appeal allowed
2016-VIL-89-CESTAT-DEL-CU
MAHESH & COMPANY PVT LTD Vs COMMISSIONER OF CUSTOMS, NEW DELHI
Customs – Power of adjudicating authorities under Customs Act to decide competing claims of title to seized goods - competing claims as to title of seized goods - claimed of Bank as entitlement to the seized goods on the basis of a hypothecation agreement – HELD - there is no provision under the Customs Act which authorizes adjudicating authorities under this Act to decide competing claims of title to goods which are the subject matter proceedings under the Act. Adjudication and determination of competing claims of title to goods which are subject to proceedings under the Act is nevertheless outside the purview and jurisdiction of authorities - neither the respondent-Commissioner nor this Tribunal have jurisdiction to determine, in the circumstances of this case, whether the seized goods belong to either the appellant or to the bank under the hypothecation agreement between the later - The declaration under the impugned order that the gold seized at the airport belongs to importer is a conclusion which is patently without jurisdiction and therefore non-est and inoperative - appeal disposed
SERVICE TAX SECTION
2016-VIL-54-KAR-ST
COMMISSIONER OF SERVICE TAX, BANGALORE Vs M/s KYOCERA WIRELESS [I] PVT LTD
Service Tax - Software engineering and support services – refund of accumulated service credit due to export of services – practice of clubbing together of batch of appeals involving common issues and passing of common Interim Order by Tribunal – application of such interim order in Final Order of individual cases - speaking order – HELD - the Tribunal in all its eagerness to decide the pending cases, in order to reduce the pendency of appeals, has adopted a technique in clubbing of cases and passing an interim order on all the issues involved in the batch of cases and the same is applied in the Final Order of the individual cases – this would have appreciated if, the Tribunal had passed the Final Order in one case and the same is adopted in other batch of cases. The scope of Interim Order is very limited. It is temporary and effective only during the pendency of litigation; ceases to exist as soon as the Final Order is passed. No law can be laid down in an interim order. The procedure adopted by the Tribunal is strange and contrary to the settled principles of law - Passing Final Order, referring to the paragraphs in the Interim Order is not a speaking order. As such, the order passed by the Tribunal is not sustainable - matter back to the Tribunal to consider the matter afresh and to pass a speaking order assigning reasons – Revenue appeal allowed by remand
2016-VIL-87-CESTAT-DEL-ST
AMRIT LEARNING LTD Vs CST DELHI
Service Tax - rejection of the refund claim - Appellant failed to establish that the burden of service tax was not passed on to the service recipient – tax invoice – HELD - the value of service remaining the same even when the appellant started paying service tax is not conclusive evidence that burden of service tax was not passed on to the service recipients - However, in this case the value of service remained the same in all the three periods namely before it paid service tax during the period when it paid service tax and after that when it stopped paying service tax. This fact certainly provides a lot of gravitas to the appellant’s claim that the burden was not passed. Then there is a certificate of Chartered Accountant and also the invoices did not show the component of service tax at all. All these factors put together constitute sufficient weight of evidence to infer that the appellant has been able to discharge of its onus to establish that it did not pass on the burden of Service tax (which is being claimed as refund) to the service recipient - the impugned refund is not hit by the doctrine of unjust enrichment - the impugned order is asset aside and assessee appeal allowed
bihOrdi1
Bihar Value Added Tax Ordinance, 2016 - Amendment in Section 3A, 14 & 70 - Enhancement in Surcharge and Residual rate
cuNoti06NT
Customs: Fixation of Tariff Value of Edible Oil, Brass, Poppy Seed, Areca Nut, Gold and Sliver
30th of Jan
2016-VIL-04-SC
COMMISSIONER OF COMMERCIAL TAXES Vs M/s K.T.C. AUTOMOBILES
Kerala General Sales Tax Act – Sale - Motor Vehicles Act, 1988 - Central Motor Vehicles Rules, 1989 - Section 4(ii) of Central Sales Tax Act, 1956 - Sections 4, 19 and 20 of the Sales of Goods Act – incidence of ‘sale’ in respect of motor vehicle bought by a buyer from a dealer – Registration of vehicle in the territory having lower tax – books of account – HELD - mere mentioning of engine number and chassis number of a motor vehicle in the invoice of sale does not entitle the intending purchaser to appropriate all the goods, i.e. the motor vehicle till its possession is or can be lawfully handed over to him - Such transfer of possession can take place only when the vehicle reaches the place where it is duly registered by the Registering Authority - Hence, technically though the registration of a motor vehicle is a post-sale event, the event of sale is closely linked in time with the event of registration - though sale precedes the event of registration, in normal circumstances and as the law stands, it is co-terminus with registration of a new motor vehicle - a motor vehicle remains in the category of unascertained or future goods till its appropriation to the contact of sale by the seller is occasioned by handing over its possession at or near the office of registration authority in a deliverable and registrable state - the allegations and facts made or noted by the Intelligence Officer no doubt create some doubts but they do not lead to a conclusive inference that the vehicles had been sold at Kozhikode in Kerala. According to both the authorities, the materials, at best, raise only some suspicion which can never take the place of proof which is necessary for imposition of penalty upon the assessee – Revenue appeal dismissed
2016-VIL-02-ARA
M/s INDUS TOWERS LIMITED Vs THE COMMISSIONER OF CENTRAL EXCISE, DELHI-1
Central Excise – Manufacture - Telecom equipment - Whether the activities of repair and maintenance proposed to be undertaken by the applicant amounts to manufacture within the meaning of Section 2(f) of the Central Excise Act, 1944 – repair of goods where there is no change in identity of products - HELD - the activity of repair and maintenance proposed to be undertaken by the applicant will not amount to manufacture within the meaning of section 2(f) of the Act - The applicant is eligible to avail Cenvat Credit of Excise Duty under the Central Excise Act, 1944 / Additional Duty of Excise under Section 3(1) of the Customs Tariff Act, 1975 paid on parts and spares used for their replacement of the defective ones and Service Tax paid on inspection, Certification and engineering services etc. for the aforesaid repair and maintenance activities and claim set off against the output service tax paid for rendering of passive infrastructure service by the applicant to its customers – in favour of assessee
2016-VIL-03-ARA
M/s CREATIVE PROBLEM SOLVING INDIA Vs COMMISSIONER OF SERVICE TAX-VI, MUMBAI
Service Tax - Whether the sale of the books to Indian entities involves any ‘service’ and would attract the service tax liability – HELD – there is no element of ‘service’ in this transaction - this service does not entail and invite any liability for service tax – in favour of assessee
2016-VIL-04-ARA
M/s SICPA INDIA PVT LTD, NEW DELHI Vs COMMISSIONER OF SERVICE TAX, NEW DELHI
Service Tax – Taxability of supply and installation of ESCIM System of Government of NCT of Delhi at customer site, supply consumables, providing training and system maintenance – HELD - All the clauses amply make it clear that possession and effecting control of the goods (System) will be with the customer - The activity proposed to be undertaken by applicant is not liable to Service Tax under the provisions of the Finance Act, 1994
wbOrder290116
West Bengal: Extension of the last date of filing VAT Return for QE 31/12/2015
wbNoti92FT
West Bengal: Amendment of W.B. Value Added Tax (Certificate Proceedings) Rules, 2009
wbNoti92FT
West Bengal: Regarding appointment of Tax Recovery Officers under WBVAT, 2003
delCir37
Delhi: Expeditious disposal of refund cases of amount upto Rs. 10,000
mahaCir3T
Maharashtra: Circular No. 3T with correction
dgftNoti34
DGFT: Amendment in para 2.05 (c) of Foreign Trade Policy (2015-20)
cusNoti04ADD
Customs: Amendment in notification No. 133/2008- Customs dated 12.12.2008
31st of Jan
tnNotiGO15
Tamil Nadu: Date of effect of Tamil Nadu Value Added Tax (Second Amendment) Act, 2015; List of goods require to carry 'Advance Inward Way Bill' while entering into the State from a place outside the State to a destination within the State; application of provisions contained in the Information Technology Act, 2000 to various procedures under TNVAT Act and Rules; and Exemption to sales made to Special Economic Zone Units
tnNotiGO18
Tamil Nadu Value Added Tax Rules, 2007 - Amendment in Rule 2, 5, 6, 7, 9, 10, 11, 12-A, 14, 15, 16-A, 17, 19, 23, 25 and amendment in various Forms
tnNotiGO19
Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Rules, 1990 - Amendment in Rule 3, 4, 13, 16 & Form-I; and Insertion of new Rule 18
karNoti23
Karnataka: Online filing of appeal by dealers (e-Appeal)
rajNoti2632
Rajasthan: Extension in date for submission of annual return for FY 2014-15 in Form VAT-10A
punPN300116
Punjab: Extension in last date for e-filing of VAT-15 for the 3rd Quarter of 2015-16
ceNoti04
Central Excise: Increase the Basic Excise Duty rates on Petrol and Diesel (unbranded and branded)